Delhi High Court

Hemant Nanda vs Vinod Kumar & Ors. on 19 August, 2009

Author: J.R. Midha

6
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                         +       MAC.APP.475/2004

%                                    Date of decision: 19th August, 2009


      HEMANT NANDA                                    ..... Appellant
                             Through : Mr. Rajeev Saxena, Adv.

                       versus

      VINOD KUMAR & ORS.                  ..... Respondents
                   Through : Mr. S.L. Gupta, Adv. for R-3.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                YES

3.      Whether the judgment should be                        YES
        reported in the Digest?

                                JUDGMENT (Oral)

1. The appellant has challenged the award of the learned

Tribunal whereby compensation of Rs.3,34,400/- has been

awarded to the appellant. The appellant seeks enhancement of

the award amount.

2. The accident dated 19th November, 1999 resulted in

grievous injuries to the appellant. The appellant was travelling

on his two wheeler scooter when the offending truck crushed him

under its wheels. The left arm of the appellant just below the

shoulder was amputated by a surgery performed on him after the

accident. The disability of the appellant as per the certificate,

Ex.PW-18 issued by All India Institute of Medical Sciences is 80%.

3. At the time of the accident, the appellant was working as

Sales Manager with Jagdamba Glass House drawing a salary of

Rs.5,500/- per month. The appellant came in the witness box as

PW-2 and deposed that he was working as Sales Manager

earning Rs.5,500/- per month. The appellant also proved his

secondary and senior secondary certificate as Ex.PW-19 and

Ex.PW-20. The employer of the appellant appeared in the

witness box as PW-3 and deposed that the appellant was her

employee as Sales Manager and was drawing a salary of

Rs.5,500/- per month. PW-3 produced 12 vouchers in respect of

the salary paid to the appellant for the period from January, 1999

to December, 1999 which were exhibited as Ex.PW3/1 to

Ex.PW3/12. PW-3 also produced the attendance register in

respect of the appellant for the period from April, 1999 to March,

2000 and the photocopies of the same were exhibited as

Ex.PW3/13 to Ex.PW3/24. In cross-examination, PW-3 admitted

that the appellant was not working with her after the accident.

4. The learned Tribunal disregarded the testimony of PW-2

and PW-3 as well as Ex.PW3/1 to PW3/24 on the short ground

that PW - 3 was not paying Income Tax and her shop was not

registered under the Shop Establishment Act. The learned

Tribunal took the income of the deceased according to the

minimum wages at Rs.2,800/- and applied the multiplier of 18 to

compute the loss of income at Rs.3,02,400/-. The appellant has

suffered 80% permanent disability but the loss of earning

capacity was taken to be 50%. The learned Tribunal awarded

Rs.2,000/- towards the medical expenses, Rs.2,000/- towards

conveyance and Rs.30,000/- towards non-pecuniary damages.

The total compensation awarded to the appellant is

Rs.3,34,400/-.

5. The learned counsel for the appellant submits that the

learned Tribunal erred in disregarding the testimony of PW-2 and

PW-3 and Ex.PW3/1 to Ex.PW3/24. The learned counsel submits

that the appellant was working as Sales Manager earning

Rs.5,500/- per month and the loss of income be computed on the

said basis after taking the future prospects into consideration.

6. The learned counsel for the appellant further seeks

enhancement of compensation towards medical expenses,

conveyance and special diet. The learned counsel also seeks

enhancement of the non-pecuniary damages.

7. With respect to the occupation and income of the appellant,

there is sufficient evidence on record that the appellant was

working as a Sales Manager with Jagdamba Glass House at the

time of the accident and was earning a salary of Rs.5,500/- per

month. Ex.PW3/1 to Ex.PW3/12 are the vouchers in respect of

the salary paid to the appellant for the period from January, 1999

to December, 1999 and Ex.PW3/13 to Ex.PW3/24 are the

photocopies of the attendance register in respect of the appellant

for the period from April, 1999 to March, 2000.

8. The appellant cannot be punished for the non-registration of

the shop of the employer or the non-payment of the Income Tax

by the employer. The employer is liable for the consequences of

his default of non-payment of Income Tax but the employee

cannot be punished for the same. It has been sufficiently proved

that the appellant was working as Sales Manager drawing a

salary of Rs.5,500/- per month and there is no rebuttal to the

evidence in this regard. The income of the appellant at the time

of the accident is, therefore, taken to be Rs.5,500/- per month.

The appellant had a permanent job and, therefore, 50% is added

towards the future prospects and the income of the appellant for

computation of compensation is taken to be Rs.8,250/- per month

(Rs.5,500 + Rs.2,750).

9. The appellant has suffered 80% permanent disability in

relation to his left upper limb. The learned Tribunal has taken the

loss of earning capacity to be 50% in respect of the whole boxy.

The presumption drawn by the learned Tribunal in this regard is

correct. The learned Tribunal has applied the multiplier of 18 to

compute the loss of income. The appellant was aged 28 years at

the time of the accident and the appropriate multiplier according

to the recent judgment of the Hon‟ble Supreme Court in the case

of Sarla Verma Vs. Delhi Transport Corporation, 2009 (6)

Scale 129 is 17. Applying the multiplier of 17 and treating the

loss of earning capacity to be 50%, the loss of income is

computed to be Rs.8,41,500/- (Rs.8,250 X 12 X 17 X 50%).

10. The learned Tribunal has awarded Rs.2,000/- towards the

medical expenses. The appellant‟s left arm was crushed under

the offending truck and he underwent surgery for amputation.

The appellant remained hospitalized from 19th November, 1999 to

25th November, 1999. The complete medical record of the

appellant is on record. The appellant has placed on record

medical bills to the tune of Rs.22,020/- against which the learned

Tribunal has awarded only Rs.2,000/-. The expenditure on

treatment is, therefore, enhanced from Rs.2,000/- to Rs.22,020/-.

11. The appellant claimed Rs.15,000/- towards expenditure

incurred on conveyance for the visiting doctors. The appellant is

also entitled to future conveyance as he is not in a position to

either drive any vehicle or travel by public vehicle. However, the

learned Tribunal observed that Rs.15,000/- claimed by the

appellant for visiting to the doctors and coming back is on a

higher side and awarded only Rs.2,000/-. The compensation

towards the conveyance is assessed at Rs.1,000/- per month and

the multiplier of 17 is applied to compute the loss at

Rs.2,04,000/-.

12. The learned Tribunal has awarded a compensation of

Rs.30,000/- towards the non-pecuniary damages which is on a

very lower side. Reference in this regard may be made to the

judgment of this Court in the case of Oriental Insurance Co.

Ltd. vs. Vijay Kumar Mittal, MAC.APP.No.228/2006 decided

on 11th May, 2007 in which this Court examined all the previous

judgments and held as under:-

"20 From the afore noted judicial decisions, a trend which emerges is that between the years 1985 to 1990, Courts have been awarding about Rs.3,00,000/- under the head „non pecuniary damages‟ for amputation of leg resulting in permanent disability of 50% and above."

13. Rs.1,00,000/- is awarded towards pain and sufferings and

Rs.1,00,000/- is awarded towards loss of amenities of life.

14. The appellant is entitled to total compensation of

Rs.12,67,520/- (Rs.8,41,500 + Rs.22,020 + Rs.2,04,000 +

Rs.1,00,000 + Rs.1,00,000).

15. The appeal is allowed and the award amount is enhanced

from Rs.3,34,400/- to Rs.12,67,520/-. The learned Tribunal has

awarded interest @8% per annum which is not disturbed on the

original award amount. However, on the enhanced award

amount, the rate of interest shall be @7.5% per annum from the

date of filing of the petition till realization.

16. The enhanced award amount along with interest be